It’s almost set up like a joke: how do we fix the Patriot Act? With the USA FREEDOM Act.

On Tuesday, the original Wisconsin Republican author of the Patriot Act, Jim Sensenbrenner (R-WI), introduced a major change to the October 2011 law. It would ban the bulk collection of metadata, which the government argues is covered by Section 215 of that law (this section allows for the collection of "business records").

"Our bill also ensures that this program will not simply be restarted under other legal authorities, and [it] includes new oversight, auditing, and public reporting requirements," Sensenbrenner wrote in an op-ed in Politico on Tuesday. "No longer will the government be able to employ a carte-blanche approach to records collection or enact secret laws by covertly reinterpreting congressional intent. And to further promote privacy interests, our legislation establishes a special advocate to provide a counterweight to the surveillance interests in the FISA Court’s closed-door proceedings."

In addition to its political support, the proposal has broad backing from both industry and civil liberties groups.

"This bill ensures substantial, meaningful reform,” Sherwin Siy, vice president of Legal Affairs for Public Knowledge, said in a statement. “It's supported by a longstanding champion of civil liberties against government surveillance in Chairman Leahy and by one of the principal authors of the Patriot Act in Chairman Sensenbrenner. The fact that they both agree that the NSA is wielding spying powers never intended by the law is a clear sign that these reforms are essential to reining in these warrantless searches and seizures."

“Due to the stifling secrecy that has shrouded these programs for too long, the public and even some Congressional leaders currently lack sufficient information to precisely define the contours and boundaries that are necessary in this area,” said Ed Black, CEO and president of the Computer and Communications Industry Association, in a statement.

More review and more transparency

First and foremost is the end to bulk metadata collection. Further, the FREEDOM Act would create an “Office of the Special Advocate,” a person who would “vigorously advocate” against the government in hearings at the Foreign Intelligence Surveillance Court. (At present, the government argues before the FISC unopposed.) This idea of a civil ombudsman has also been floated by other lawmakers in recent weeks.

The advocate would be selected from one of five names submitted by the Privacy and Civil Liberties Oversight Board (PCLOB), one of which would then be selected by the chief justice of the United States. The advocate would serve for a term of three years and could be re-appointed indefinitely. It would also give the PCLOB subpoena power for the first time.

Additionally, the bill would require that the attorney general of the United States publicly disclose “all decisions issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review after July 10, 2003 that include a significant construction or interpretation of law.”

Another big addition would be an increase in public transparency to give private companies the ability to publicly report the aggregate number of FISA orders and National Security Letters they have received, how many they have complied with, and how many users this concerns. (This provision is something that companies have asked the FISC to grant them.) But this new bill actually goes further, and it would “require the government to make annual or semiannual public reports estimating the total number of individuals and US persons that were subject to FISA orders authorizing electronic surveillance, pen/trap devices, and access to business records.”

Metadata on the loose

Even with all the positive feelings, the bill still has room for improvement according to some legal experts. For instance, Clark Asay, a law professor at Penn State University, told Ars that the bill does not address a protection gap between data and metadata as far as the law is concerned.

"In today’s world, though, that type of information can say a great deal about each of us—that’s precisely why the government wants it," Asay wrote by e-mail. "So though this bill seems to be on the right track in terms of filling a gap, the gap will likely remain less than ideally filled if history is any indication. For instance, with few exceptions, these statutory fixes have typically provided weak remedies for statutory violations when compared to the types of remedies available under the Fourth Amendment. So in terms of things to be included, you’d definitely hope for meaningful remedies for violations of what the statute requires."

Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is due out in May 2018 from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar